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Ram Shankar Vs. United Provinces and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Decree Appeal No. 41 of 1944
Judge
Reported inAIR1952All173
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 10 - Order 44, Rule 1
AppellantRam Shankar
RespondentUnited Provinces and ors.
Appellant AdvocateR.N. Shukla and ;N. Banerji, Advs.
Respondent AdvocateN.U. Beg, Adv. (for No.1) and ;Masud Hasan, Adv. (for Nos. 3 to 7)
DispositionAppeal dismissed
Excerpt:
civil - pauper appeal - order 44 rule 1 and order 33 rule 10 of code of civil procedure, 1908 - appeal by pauper allowed partly and parties asked to bear own costs - court fee payment direction not given - deputy commissioner filed application for direction of payment of court fee as well as calculation of court fee - court ordered respondents to pay court fee - held, order is valid. - - , does not expressly contain any such provision but it is clearly provided that the right of any person to apply for leave to appeal as a pauper is subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable......4,972.9.0. the appellants were ordered to bear their own costs. the appeal had been preferred as a pauper appeal but the attention of the appellate court does not seem to have been directed to order 33, rule 10, civil p. c., and no order was passed as to who should be made liable to pay the court-fee. on 21-7-1943, the court was moved by the deputy commissioner of hardoi to make the calculation of court-fee and to pass an order under order 33, rule 10, civil p. c. thereupon the court passed an order making the creditors who were respondents in that case liable to pay the court fee.2. the deputy commissioner later applied for execution of this decree, and the property of the two respondents, in that appeal was attached. an objection was filed under section 47, civil p. c., stating that.....
Judgment:

Kidwai, J.

1. Ram Shanker appellant and Bishun Narian respondent 8 obtained a decree for Rs. 11,013-10-0 against Sharif Ahmad and others, respondents 2 to 7, from the Court of the Special Judge, II Grade of Hardoi. The debtors preferred an appeal which was heard and disposed of fay an order dated 13-5-1939. The appeal was partly allowed and the liability was reduced to Rs. 4,972.9.0. The appellants were ordered to bear their own costs. The appeal had been preferred as a pauper appeal but the attention of the appellate Court does not seem to have been directed to Order 33, Rule 10, Civil P. C., and no order was passed as to who should be made liable to pay the court-fee. On 21-7-1943, the Court was moved by the Deputy Commissioner of Hardoi to make the calculation of court-fee and to pass an order under Order 33, Rule 10, Civil P. C. Thereupon the Court passed an order making the creditors who were respondents in that case liable to pay the court fee.

2. The Deputy Commissioner later applied for execution of this decree, and the property of the two respondents, in that appeal was attached. An objection was filed under Section 47, Civil P. C., stating that the amount of court-fee was not recoverable from the respondents since the costs had been ordered to be borne by the appellants themselves. The matter pending before the Court is with regard to execution. The order itself has become final, since the respondents did not appeal from it nor did they file any application in revision. It must, therefore, be given effect to by the execution Court, unless it is held to bea nullity because the Court which passed it had no jurisdiction to do so. The learned Advocate for the appellant urged that this was not a case of a pauper suit but of an appeal and that, therefore, Order 33, Civil P. C., did not apply but only Order 44, Civil P. C,, had to be considered in order to determine the authority of the Court to pass an order of the nature of order passed by it. He points out that Order 44 does not contain any thing about any direction for the payment of court-fees being made.

3. It is true that Order 44, Civil P. C., does not expressly contain any such provision but it is clearly provided that the right of any person to apply for leave to appeal as a pauper is

'subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable.'

One of the provisions relating to suits by paupsrsis the provision contained in Order 33, Rule 10 whichdirects the Court to calculate the amount ofcourt-fee which would have been paid by theplaintiff, and also to direct which party shallpay that court fee. Obviously, therefore, theCourt (had ?) jurisdiction to make an order of thenature which it has actually made and it did notact without jurisdiction. Its order, therefore, cannot be treated as a nullity. The objection underSection 47, Civil P. C., was rightly dismissed and thisappeal fails and is dismissed with costs.


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